Weaver et al v. Johnson & Johnson, Ethicon, Inc. et al

Filing 52

ORDER Granting Defendant's 47 Motion to Dismiss With Prejudice. The hearing set for February 24, 2017 shall be vacated. Signed by Judge Gonzalo P. Curiel on 2/21/17. (dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 KIMBERLY WEAVER AND JAMES WEAVER, v. Plaintiffs, CASE NO. 16cv257-GPC(BGS) ORDER GRANTING DEFENDANT’S MOTION TO DISMISS WITH PREJUDICE 13 14 15 ETHICON, INC.; and DOES 1 through 20, inclusive, [Dkt. No. 47.] Defendants. 16 17 Before the Court is Defendant Ethicon, Inc.’s motion to dismiss the third 18 amended complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). 19 (Dkt. No. 47.) Plaintiffs filed an opposition, and Defendant filed a reply. (Dkt. Nos. 20 49, 51.) After a review of the parties’ briefs and the applicable legal authority, the 21 Court GRANTS Defendant’s motion to dismiss the third amended complaint. 22 23 Procedural Background Plaintiffs Kimberly Weaver and James Weaver (collectively “Plaintiffs”) filed 24 a complaint in state court which was removed to this Court on February 1, 2016 against 25 Defendants Johnson & Johnson (“J&J”), and its subsidiary, Ethicon, Inc. (“Ethicon”). 26 (Dkt. No. 1.) On February 8, 2016, J&J filed a motion to dismiss for lack of personal 27 jurisdiction pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(2) and failure 28 to state a claim pursuant to Rule 12(b)(6). (Dkt. No. 3.) The Court denied J&J’s Rule -1- [16cv257-GPC(BGS)] 1 12(b)(2) motion to dismiss without prejudice and granted Plaintiffs’ request for 2 jurisdictional discovery, denied J&J’s Rule 12(b)(6) motion as premature, and granted 3 Plaintiffs’ leave of court to file an amended complaint once jurisdictional discovery is 4 completed. (Dkt. No. 22.) Subsequently, the parties filed a joint motion to dismiss 5 J&J. (Dkt. No. 23.) 6 Plaintiffs then filed a first amended complaint (“FAC”) against Ethicon for 7 negligence, strict liability, and loss of consortium. (Dkt. No. 25.) On May 26, 2016, 8 Ethicon filed a motion to dismiss arguing Plaintiffs’ state law claims are expressly 9 preempted by the Medical Device Amendment (“MDA”). (Dkt. No. 26.) On August 10 22, 2016, the Court granted Defendant’s motion to dismiss the complaint as expressly 11 preempted and granted Plaintiffs’ request for leave to file a second amended complaint. 12 (Dkt. No. 36.) On September 2, 2016, Plaintiffs filed a second amended complaint 13 (“SAC”) alleging manufacturing defect-strict liability, manufacturing defect14 negligence, failure to warn-strict liability, failure to warn-negligence and loss of 15 consortium. (Dkt. No. 37.) Defendant again moved to dismiss the SAC arguing that 16 the state law claims are expressly preempted by the MDA and Plaintiffs have failed to 17 allege state law claims that are parallel to violations of federal law. (Dkt. No. 38.) On 18 December 6, 2016, the Court granted Defendant’s motion to dismiss as expressly 19 preempted with leave to amend one final time. (Dkt. No. 44.) On December 27, 2016, 20 in an attempt to cure the deficiencies in the SAC, Plaintiff filed a third amended 21 complaint (“TAC”) alleging the same causes of action as the second amended 22 complaint and adding a claim for punitive damages. (Dkt. No. 45.) Defendant filed 23 the instant motion to dismiss on January 10, 2017 which is fully briefed. (Dkt. Nos. 24 47, 49, 51.) 25 26 Factual Background Ethicon manufactures a variety of medical devices and distributes them to 27 doctors, hospitals, and facilities in California which includes manufacturing the Sugiflo 28 Hemostatic Matrix Kit (“Surgiflo”). (Dkt. No. 45, TAC ¶ 3.) Ethicon introduced -2- [16cv257-GPC(BGS)] 1 Surgiflo in the United States in 1999. (Id.) 2 On or about November 24, 2014, Plaintiff Kimberly Weaver underwent sinus 3 surgery in San Diego, CA for chronic sinusitis. (Id. ¶ 6.) During the procedure, her 4 surgeon used Surgiflo with Thrombin to control the bleeding. (Id.) Surgiflo’s purpose 5 is to act as packing in order to control bleeding. (Id.) Her surgeon believed that the 6 packing would self-absorb in her body within a couple of days. (Id.) On December 4, 7 2014, Kimberly underwent a second surgery due to complications from the first surgery 8 consisting of migraine headaches, occipital neuralgia, nasal pain, pressure and other 9 injuries which are detailed in her medical records. (Id. ¶ 7.) After the surgery, it was 10 determined that her complaints were due to the failure of the Surgiflo to absorb into her 11 body. (Id.) These complications and adverse effects were not detailed or reported to 12 the Federal Drug Administration (“FDA”) when Ethicon applied for premarket 13 approval (“PMA”) in 1999 and in subsequent re-evaluations and re-approvals. (Id.) 14 Plaintiffs allege that Surgiflo was not designed, manufactured and labeled in 15 accordance with specifications approved by the FDA through the PMA process. (Id. 16 ¶ 9.) As a result of the defects, Plaintiff Kimberly has suffered pain, mental anguish, 17 loss of income and continues to suffer pain and suffering. (Id. ¶ 11.) Plaintiff James 18 Weaver was present with his wife, Kimberly Weaver, except during the surgery, and 19 has suffered loss of society, comfort, consortium, services, and income. (Id. ¶ 13.) 20 The Court previously granted Defendant’s request for judicial notice of 21 documents concerning the FDA’s premarket approval of the Sugiflo which are 22 available on the FDA’s website. (Dkt. No. 36 at 3 n.1.) According to those documents, 23 Surgiflo is a Class III medical device and requires premarket approval (“PMA”). See 24 21 C.F.R. § 878.4490. On January 22, 2009, Ethicon submitted a PMA application for 25 its Surgifoam Absorbable Gelatin Sponge (“Surgifoam”). (Dkt. No. 39-1, D’s RJN, Ex. 26 1 at 21.) Surgifoam is used in “surgical procedures (other than neurological, urological 27 and ophthalmological surgery) as an adjunct to hemostatis when control of capillary, 28 1 Page numbers are based on the CM/ECF pagination. -3- [16cv257-GPC(BGS)] 1 venous and arteriolar bleeding by pressure, litgature and other conventional procedures 2 is ineffective or impractical.” (Id.) On September 30, 1999, the FDA found Surgifoam 3 safe and effective as designed, manufactured and labeled and issued an Approval 4 Order. (Id. at 2-17.) Since then, the application of Surgifoam has been supplemented, 5 re-evaluated, and re-approved 29 separate times, including most recently on May 16, 6 2016. (Dkt. No. 39-3, D’s RJN, Ex. 3.) On May 5, 2005, the FDA approved a 7 supplement and allowed Ethicon to market the Surgifoam as a pre-filled paste from the 8 powdered form as the Surgiflo Hemostatic Matrix. (Dkt. No. 39-4, D’ RJN, Ex. 4.) 9 Another supplement was approved on October 2, 2009 granting Ethicon approval to 10 market the Surgiflo Hemostatic Matrix Kit, which consists of Surgiflo Hemostatic 11 Matrix and “evithrom lyophilized human thrombin.” (Dkt. No. 39-5, D’s RJN, Ex. 5.) 12 Discussion 13 A. Legal Standard on Federal Rule of Civil Procedure 12(b)(6) 14 Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state 15 a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal under 16 Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or 17 sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police 18 Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). Under Rule 8(a)(2), the plaintiff is required 19 only to set forth a “short and plain statement of the claim showing that the pleader is 20 entitled to relief,” and “give the defendant fair notice of what the . . . claim is and the 21 grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 22 (2007). 23 A complaint may survive a motion to dismiss only if, taking all well-pleaded 24 factual allegations as true, it contains enough facts to “state a claim to relief that is 25 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 26 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 27 content that allows the court to draw the reasonable inference that the defendant is 28 liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause -4- [16cv257-GPC(BGS)] 1 of action, supported by mere conclusory statements, do not suffice.” Id. “In sum, for 2 a complaint to survive a motion to dismiss, the non-conclusory factual content, and 3 reasonable inferences from that content, must be plausibly suggestive of a claim 4 entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 5 2009) (quotations omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as 6 true all facts alleged in the complaint, and draws all reasonable inferences in favor of 7 the plaintiff. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). 8 B. Analysis 9 In the Court’s prior orders on Defendant’s two previous motions to dismiss on 10 preemption, it held that the state law claims of strict liability, negligence, and loss of 11 consortium were expressly preempted by the MDA and Plaintiffs did not allege facts 12 to fall within the narrow exception to the express preemption doctrine announced in 13 Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). (Dkt. No. 36 at 7-9; Dkt. No. 44 at 10, 14 13, 14.) In its current motion, Defendant again argues that Plaintiffs have not cured the 15 allegations to fall within the narrow exception left open in Riegel and the Court should 16 dismiss the TAC with prejudice. Plaintiffs argue that they have sufficiently alleged 17 facts to support state law causes of action that are parallel with federal law. 18 The Medical Device Amendments (“MDA”) to the Food, Drug, and Cosmetic 19 Act (“FDCA”) was enacted to “extend the coverage of the FDCA to medical devices.” 20 Stengel v. Medtronic Inc., 704 F.3d 1224, 1226 (9th Cir. 2013) (en banc). The MDA’s 21 preemption provision provides: 22 23 24 25 26 27 28 Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement (1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter. 21 U.S.C. § 360k. Riegel established a two step analysis to determine whether a claim is expressly preempted under the MDA. Riegel, 552 U.S. at 321-22. First, the court must decide whether the FDA has established requirements specific to the device at -5- [16cv257-GPC(BGS)] 1 issue. Id. at 321. Second, the court must determine whether the state-law claim would 2 impose any requirements that are “different from or in addition” to the federal ones, 3 and relate to safety or effectiveness. Id. at 321-22. State “requirements” include 4 common law duties. Houston v. Medtronic, Inc., 957 F. Supp. 2d 1166, 1174 (C.D. 5 Cal. 2013) (citing Riegel, 552 U.S. at 324-25). Riegel held that while common law 6 claims of strict liability, negligence and implied warranty claims impose requirements 7 that are different from the federal requirements, 522 U.S. at 323-24, it left open a 8 narrow exception asserting that the MDA “does not prevent a State from providing a 9 damages remedy for claims premised on a violation of FDA regulations; the state duties 10 in such a case ‘parallel,’ rather than add to, federal requirements.” Id. at 330; Stengel, 11 704 F.3d at 1228 (“the MDA does not preempt a state-law claim for violating a 12 state-law duty that parallels a federal-law duty under the MDA.”); In re Medtronic, Inc. 13 Sprint Fidelis Leads Prods. Liab. Litig., 592 F. Supp. 2d 1147, 1152 (D. Minn. Jan. 5, 14 2009) (“Riegel left open a back door for plaintiffs: claims alleging that a manufacturer 15 failed to adhere to the specifications imposed by a device’s PMA are not preempted.”) 16 The Court previously held that step one had been met as the Surgifoam 17 underwent a rigorous review process and obtained premarket approval on September 18 30, 1999 and underwent supplemental, re-evaluation and re-approval twenty eight 19 times and include Surgiflo. (Dkt. No. 36 at 6; Dkt. No. 44 at 6.) The Court also held 20 that the second step had been met and concluded that the state law claims were 21 preempted by the MDA. (Dkt. No. 36 at 6; Dkt. No. 44 at 10, 13, 14.) In allowing 22 Plaintiffs leave to file a third amended complaint, they were granted one final 23 opportunity to allege specific facts to support their state law causes under the narrow 24 exception pronounced by Riegel. (Dkt. No. 44 at 14.) 25 In the motion, the parties dispute whether Plaintiffs have alleged facts to support 26 state law claims that parallel federal requirements. State law claims asserting a 27 violation of FDA regulations or requirements “parallel” federal requirements and are 28 not preempted. In re Medtronic, Inc., 592 F. Supp. 2d at 1152. “To properly plead -6- [16cv257-GPC(BGS)] 1 parallel claims that survive preemption, a plaintiff must allege facts (1) showing an 2 alleged violation of FDA regulations or requirements related to [the device], and (2) 3 establishing a causal nexus between the alleged injury and the violation.” Houston, 4 957 F. Supp. 2d at 1174 (quoting Erickson v. Boston Scientific Corp., 846 F. Supp. 2d 5 1085, 1092 (C.D. Cal. 2011). In Erickson, the court noted that a plaintiff cannot simply 6 allege that the defendant violated FDA regulations in order to avoid preemption. 7 Erickson, 846 F. Supp. 3d at 1092. Instead, “a plaintiff must allege that the defendant 8 ‘violated a particular federal specification referring to the device at issue,’ . . . or 9 identify specific PMA requirements that have been violated.” Id. (plaintiff failed to 10 state a claim by failing to allege how defendants deviated from any specific FDA 11 requirements or how these violations affected the device); but see Bausch v. Stryker 12 Corp., 630 F.3d 546, 553, 560 (7th Cir. 2010) (if plaintiffs can prove harm due to a 13 violation of federal law, plaintiffs are not required to plead a violation of a specific 14 regulatory requirement since much of the critical information for Class III medical 15 devices are kept confidential as a matter of federal law). 16 i. 17 Plaintiffs bring claims for manufacturing defect under the theories of negligence Manufacturing Defect 18 and strict liability. Defendant contends that Plaintiffs still fail to assert a causal nexus 19 between the alleged defect and Plaintiffs’ injuries. In response, Plaintiffs argue that 20 there was a product recall for non-sterility due to faulty packaging, that the product 21 recall was not complete, that Kimberly received a recalled product that was not 22 accounted for, and the lack of sterility in the product caused it to not absorb and caused 23 her injuries. 24 A manufacturing defect is “one that differs from the manufacturer’s intended 25 result or from other ostensibly identical units of the same line of products.” Barker v. 26 Lull Eng’g Co., 20 Cal. 3d 413, 429 (1978). A “manufacturing defect” theory posits 27 that a “suitable design is in place, but that the manufacturing process has in some way 28 deviated from that design.” In re Coordinated Latex, 99 Cal. App. 4th 594, 613 (2002). -7- [16cv257-GPC(BGS)] 1 “A manufacturing defect [is] a legal cause of injury only if the defect [is] a substantial 2 factor in producing the injury.” Garrett v. Howmedica Osteonics Corp., 214 Cal. App. 3 4th 173, 190 (2013) (citation omitted). 4 In order to survive MDA preemption on a manufacturing defect claim, courts 5 have required specific allegations “that the manufacturing of the device both fell short 6 of the FDA’s requirements for manufacturing and - based on the same deficiency - was 7 defectively manufactured under California law.” De La Paz v. Bayer Healthcare LLC, 8 159 F. Supp. 3d 1085, 1092 (N.D. Cal. 2016) (quoting Funke v. Sorin Group USA, 9 Inc., 147 F. Supp. 3d 1017, 1026 (C.D. Cal. 2015)). A plaintiff cannot merely assert 10 that the device violated federal standards but must provide some allegation regarding 11 “the nature of the alleged . . . defect as it relates to the FDA approval process.” 12 Simmons v. Boston Scientific Corp., No. 12-7962, 2013 WL 1207421, at *4 (C.D. Cal. 13 Mar. 25, 2013) (plaintiff must allege that the defendant “violated a particular federal 14 specification referring to the device at issue” or a specific PMA requirement); Parker 15 v. Stryker Corp., 584 F. Supp. 2d 1298, 1301 (D. Colo. 2008) (granting defendant's 16 Rule 12(b)(6) motion because “nowhere does plaintiff's complaint provide any factual 17 detail to substantiate th[e] crucial allegation” that the devices violated FDA 18 requirements). Moreover, Plaintiffs “‘cannot simply incant the magic words 19 ‘[Defendant] violated FDA regulations’ in order to avoid preemption.’” Houston v. 20 Medtronic, Inc., 957 F. Supp. 2d 1166, 1178 (C.D. Cal. 2013) (quoting Wolicki–Gables 21 v. Arrow Int’l, Inc., 634 F.3d 1296, 1301 (11th Cir. 2011)). 22 Here, though not entirely clear, it appears the TAC now alleges that Kimberly 23 Weaver’s injuries were caused by faulty packaging causing the product to become non24 sterile, as evidenced by the recalls, which caused the Surgiflo to not absorb, and 25 subsequently caused her infection.2 She claims that her treating physician used a 26 recalled product that was not accounted for and thus, she suffered injuries. 27 2 In their prior complaints, Plaintiffs alleged that the manufacturing defect was 28 the Surgiflo’s failure to absorb, which caused her infection. (Dkt. No. 25, FAC ¶ 14; Dkt. No. 37, SAC ¶¶ 2, 11.) -8- [16cv257-GPC(BGS)] 1 Plaintiffs generally allege that Defendant “failed to inspect the product assembly, 2 product components, and product quality during manufacturing assembly without 3 proper documentation of said inspections”; “there was inadequate lack of control of 4 design of its product in the manufacturing process”; “there was inadequate training of 5 personnel in the manufacturing process quality control, assembly, procedures, 6 protocols, checking of assemblies, inspection of the simplest, final inspection of 7 assemblies, final testing of assemblies, and packaging”; “there was inadequate failure 8 to report previous problems”; “failure to follow good manufacturing procedures as 9 required by the PMA”, “packaging and/or shipping container were not manufactured 10 and constructed to protect the device alteration or damage during processing, storage, 11 handling, distribution, and use”; “failed to perform a complete risk analysis violation 12 of 21 CFR 820 et seq. . . . did not perform a complete risk analysis concerning the 13 effect of the product when it did not fully absorb the human body”; and “failed to 14 establish procedures for the validation of verification review especially in light of the 15 instances where the product does not fully absorb.” (Id. ¶¶ 19-28.) The Court 16 previously found these allegations not sufficient to allege a manufacturing defect claim. 17 The TAC also added additional allegations that two recalls in 2012 were directly 18 related to sterilization of the Surgiflo. (Id. ¶¶ 21, 39.) One recall dated August 21, 19 2012 was a Class 1 voluntary device recall of Surgiflo with Thrombin concerning an 20 issue with the packing process where “a cut could potentially breach the double Tyvek 21 pouch of the packaging.” (Dkt. No. 45-1, TAC, Ex. 33 at 20.) The recall concerned 22 lot/batch numbers that expired between January 2013 and June 2013 and the recall was 23 3 The Court may “consider certain materials–documents attached to the 24 complaint, documents incorporated by reference in the complaint, or matters of judicial notice–without converting the motion to dismiss into a motion for summary judgment.” 25 United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). “Materials submitted as part of the complaint are not considered ‘outside’ the complaint and may be 26 considered” on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Butler v. Los Angeles County, 617 F. Supp. 2d 994, 999 (C.D. Cal. 2008) 27 (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990) 28 (material properly submitted as part of the complaint may be considered)). Here, both parties rely on the documents attached to the TAC to support their arguments. -9- [16cv257-GPC(BGS)] 1 terminated on September 11, 2014. (Id. at 19-20.) Another voluntary recall was a 2 Class 2 recall which was initiated on April 3, 2012 and terminated on April 16, 2014. 3 (Id., Ex. 3 at 21.) It concerned the packaging process control where the “lyophilized 4 thrombin component of the Surgiflo Hemostatic Matrix kit with Thrombin has the 5 potential to be non-sterile due to an undetected air leak which occurred during the 6 manufacturing process.” (Id. at 22.) The lot expiration dates ranged from June 2012 7 to March 2013. (Id. at 21.) The TAC further alleges that the “product recall was not 8 complete, and that the product utilized on plaintiff was a recalled product that was not 9 accounted.” (Id., TAC ¶ 16.) 10 The Court concludes that Plaintiffs have failed to allege sufficient facts to 11 support a state law manufacturing defect claim that is parallel to federal regulations. 12 Plaintiffs’ theory requires the Court to make inferences and assumptions that are not 13 reasonable and not supported by the facts. First, the new allegation that non-sterility 14 can cause the product to not absorb is speculative and not supported by any additional 15 facts. Next, the argument that Plaintiff’s physician used a recalled product is also 16 conjecture and not factually supported. The 2012 recalls, terminated on April 16, 2014 17 and November 2014, create a reasonable inference that if the recalls were not complete, 18 as alleged by Plaintiffs, Kimberly’s physician could have used the defective product 19 on her. However, both recalls had product code expiration dates with the latest 20 expiration date of June 2013, over a year before Kimberly had her surgery in November 21 2014. Plaintiffs have not alleged that her physician used an expired recalled product 22 during Kimberly’s surgery. These speculative and unsupported allegations do not 23 support the allegation that the Surgiflo used in Kimberly’s surgery was a recalled 24 product. 25 The TAC further adds allegations that Defendant failed to perform a complete 26 risk analysis in violation of 21 C.F.R. § 820 et seq. by failing to include use of the 27 product in sinus cavity surgery. (Dkt. No. 45, TAC ¶ 27.) The PMA contains no 28 research, studies, risk analysis of the product when used in the nasal cavity. (Id.) - 10 - [16cv257-GPC(BGS)] 1 Furthermore, in 2005, Surgiflo’s name changed from Surgifoam because Thrombin was 2 added to the manufacturing process. (Id. ¶ 37.) Ethicon failed to submit a special 3 supplement report when the product changed and invalidates the PMA approval 4 process. (Id.) The change also required Ethicon to conduct new quality control testing 5 procedures which it failed to do. (Id.) Again, these are conclusory allegations of 6 Defendants’ violations of alleged federal regulations; however, there are no facts that 7 these alleged violations caused her injuries. 8 As noted in its prior order, Plaintiff’s citation to Bausch that a plaintiff need not 9 allege a specific federal regulation is not supportive. In Bausch, the plaintiff alleged 10 state law claims of negligence and strict liability alleging violations of federal 11 regulatory standards. Bausch v Stryker Corp., 630 F.3d 546, 549, 559-60 (7th Cir. 12 2010). In Bausch, the plaintiff alleged facts that provided defendants with fair notice 13 of the nature of the claims against them because the plaintiff specifically alleged that 14 the device implanted in her had the same catalogue number as the device subject to an 15 FDA warning letter and inspections concerning manufacturing issues. Id. at 559. 16 Moreover, the device in the plaintiff’s body failed and the same device was later 17 recalled. Id. In this case, Plaintiffs have not alleged facts that the Surgiflo used in her 18 sinus surgery was subject to the 2012 recalls or that the conclusory alleged violations 19 of federal regulations caused her injuries. Thus, the Court GRANTS Defendant’s 20 motion to dismiss the causes of action for manufacturing defect/strict liability and 21 manufacturing defect/negligence as preempted. 22 ii. 23 Plaintiffs also assert claims for failure to warn and report adverse events to the Failure to Report and Warn 24 FDA under strict liability and negligence. Defendant contends that Plaintiffs still have 25 not demonstrated a causal connection between a failure to report adverse events and 26 Kimberly’s injuries. 27 A failure to report adverse events to the FDA can form the basis of a parallel 28 negligence claim that survives preemption. Stengel, 704 F.3d at 1233 (holding that a - 11 - [16cv257-GPC(BGS)] 1 failure to warn claim under Arizona law based on a failure to warn the FDA was not 2 preempted); Anderson v. Medtronic, Inc., No. 14cv615-BAS(RBB), 2015 WL 3 2115342, at *7 (S.D. Cal. May 6, 2015) (indicating that the plaintiffs might be able to 4 amend their complaint to allege negligence and strict product liability based on a 5 failure to report to the FDA). California law creates a duty to warn parallel to 21 6 C.F.R. § 803.50(a), as a “device manufacturer can be found liable if it ‘did not 7 adequately warn of a particular risk that was known or knowable in light of the 8 generally recognized and prevailing best scientific and medical knowledge available 9 at the time of manufacture and distribution.’” Coleman v. Medtronic, Inc., 223 Cal. 10 App. 4th 413, 428 (2014) (quoting Anderson v. Owens–Corning Fiberglass Corp., 53 11 Cal. 3d 987, 1002 (1991)). The California duty to warn can also run to the FDA and 12 a failure to warn based on the defendant’s failure to file adverse event reports with the 13 FDA is not subject to preemption. Id. at 428-29. 14 FDA regulations require the filing of adverse event reports and provide, 15 17 (a) If you are a manufacturer, you must report to us the information required by § 803.52 in accordance with the requirements of § 803.12(a), no later than 30 calendar days after the day that you receive or otherwise become aware of information, from any source, that reasonably suggests that a device that you market: 18 (1) May have caused or contributed to a death or serious injury or 19 (2) Has malfunctioned and this device or a similar device that you market would be likely to cause or contribute to a death or serious injury, if the malfunction were to recur. 16 20 21 21 C.F.R. § 803.50(a). To plead a failure to warn parallel claim, a plaintiff must allege 22 the defendant failed to report adverse events and that the failure to warn caused the 23 plaintiff’s injuries. See Houston, 957 F. Supp. 2d at 1174. To survive a motion to 24 dismiss on a state law negligence failure to warn claim that is parallel to federal 25 regulations, the complaint “must include allegations of actual adverse events that 26 Defendants did not report.” Grant v. Corin Group PLC, 15cv169-CAB-BLM, 2016 27 WL 4447523, at *7 (S.D. Cal. Jan. 15, 2016). In Grant, the court granted Defendants’ 28 motion to dismiss because the complaint summarily alleged that Defendants violated - 12 - [16cv257-GPC(BGS)] 1 federal regulations requiring them to report adverse events without any specific 2 allegations of actual adverse events. Id. A general allegation that Defendant failed to 3 report adverse events to the FDA is not sufficient to demonstrate causation. See 4 Hawkins v. Medtronic, Inc., No. 13cv499, 2014 WL 346622, at *8 (E.D. Cal. Jan. 20, 5 2014) (“Plaintiff generally alleges that Defendants failed to report adverse events to the 6 FDA. He also generally alleges that these failures caused or contributed to his injuries. 7 What is not alleged is any factual content that would support the causal nexus.”). In 8 Eidson, the district court denied the defendant’s motion to dismiss after the plaintiff 9 amended the complaint to add specific facts as to the nature of the failure to report 10 which included a study to allege that defendants under-reported adverse events on a 11 large scale and plaintiff’s surgeon would have had access to the adverse events if it was 12 reported properly. Eidson v. Medtronic, Inc., 40 F. Supp. 3d 1202, 1234 (N.D. Cal. 13 2014); see also Michajlun v. Bausch & Lomb, Inc., No. 14-1365, 2015 WL 1119733, 14 at *8 (S.D. Cal. Mar. 11, 2015) (complaint alleged articles discussing specific instances 15 of the alleged adverse effects that were not reported); Simmons, 2013 WL 1207421, 16 at *5 (mere allegation that defendants failed to report adverse events related to electric 17 shocks to persons implanted with the medical device failed to state a claim). 18 Here, Plaintiffs allege that Defendant was aware of the failure to absorb and 19 failed to comply with federal regulations by not reporting the adverse effects of non20 absorption. (Dkt. No. 45, TAC ¶ 16.) Ethicon knew that if the product did not absorb, 21 it would lead to an infection especially in the area of the sinus cavity. (Id.) Ethicon 22 “had reports of non-absorption of its product from various sources and with that 23 knowledge continued to not report the occurrences to the federal reporting agencies 24 that it was required to do so.” (Id.) In May 2010, the FDA’s MAUDE4 Adverse Event 25 Report contains a report that a risk manager at a user facility reported that the thrombin 26 4 The Manufacturer and User Facility Device Experience (“MAUDE”) is a public 27 database maintained by the FDA and details adverse events involving medical devices. Yanek v. Staar Surgical Co., 388 F. Supp. 2d 1110, 1126 (C.D. Cal. 2005); Horrillo v. 28 Cook Inc., No. 08-60931-CIV, 2014 WL 2708544, at *4, n. 4 (S.D. Fla. June 6, 2014). - 13 - [16cv257-GPC(BGS)] 1 in the Surgiflo would not reconstitute; “it congealed into a solid material when mixed.” 2 (Dkt. No. 45-1, TAC, Ex. 1.) Plaintiffs complain that Ethicon violated 21 C.F.R. § 3 803.50 by failing to submit medical device reporting (“MDR”) reports concerning the 4 adverse effects of the Surgiflo when it does not fully absorb in a timely manner. (Id. ¶ 5 29.) According to Plaintiffs, because there was no adverse report regarding the failure 6 to absorb, the FDA could not evaluate the significance of the adverse events. (Id. ¶ 7 31.) Moreover, had the adverse event been reported, the information would have 8 reached Plaintiffs and her treating physician prior to her surgery and a reasonable 9 surgeon would not have used the product. (Id. ¶ 52.) 10 The TAC has not presented specific instances of actual adverse events that 11 Defendant failed to report regarding a failure to absorb. In correcting the deficiencies 12 the Court noted in its prior order, Plaintiffs cite to a May 2010 MAUDE adverse event 13 report as a specific instance of an adverse event that Defendant did not report. 14 However, MAUDE is a public database maintained by the FDA containing adverse 15 event report and is accessible to physicians and the public. See Yanek v. Staar Surgical 16 Co., 388 F. Supp. 2d 1110, 1126 (C.D. Cal. 2005); see generally Eidson, 40 F. Supp. 17 3d at 1233 (complaint alleged that MAUDE is public database known to and discussed 18 in the medical community). In this case, while a utility user reported the adverse event 19 concerning a failure to reconstitute, and not Defendant, the adverse event was public 20 and accessible to the FDA and physicians. Without citing to a federal regulation, 21 Plaintiff summarily allege that it was a direct violation of the PMA when Defendant 22 did not follow up on the May 2010 adverse event. Even if there was a requirement that 23 Defendant should have followed up on an adverse event reported by a utility user, the 24 causation element, that had the adverse event been reported, the information would 25 have reached her treating physician and he would not have used the product, has not 26 been alleged because the adverse report was accessible to her treating physician. (See 27 Dkt. No. 45, TAC ¶ 52.) 28 Moreover, Defendant argues that this adverse event report is unrelated and - 14 - [16cv257-GPC(BGS)] 1 concerns a failure to congeal, not a failure to absorb as alleged by Plaintiffs. While this 2 report does not directly concern a failure to absorb, there is a reasonable inference that 3 a failure to reconstitute could relate to the inability of the Surgiflo to reabsorb. 4 However, one instance of an adverse event that plausibly could support a failure to 5 absorb theory is not sufficient to have put Ethicon on notice about Surgiflo’s failure to 6 absorb. See Cline v. Advanced Neuromodulation Sys., Inc., 17 F. Supp. 3d 1275, 1287 7 (N.D. Ga. 2014) (“it is implausible that the failure of a single implanted device due to 8 battery weld issues over a six-month period would prompt action from the FDA, 9 Plaintiff, or Plaintiffs medical providers.”) 10 Plaintiffs also allege that because Defendant has not reported Kimberly Weaver’s 11 own adverse event because it does not appear on the FDA’s searchable database, 12 Defendant has violated the federal regulations requirement to report adverse events. 13 (Dkt. No. 45, TAC ¶ 22.) Defendant argues that Plaintiffs’ argument is fatally flawed 14 because they will not be able to demonstrate that the failure to report Kimberly’s 15 injuries caused her injuries. 16 The Court agrees with Defendant that a failure to report Kimberly’s injuries 17 would not satisfy the causation factor to demonstrate a failure to warn. An allegation 18 that a defendant failed to report the adverse event giving rise the plaintiff’s injuries to 19 the FDA fails to demonstrate a causation connection between the failure to report and 20 her injuries. See Johnson v. Hologic, Inc., No. 14cv794-JAM-KJN-PS, 2015 WL 21 75240, at *4 (E.D. Cal. Jan. 6, 2015); Malonzo v. Mentor Worldwide, LLC, No. C. 1422 1144 JSW, 2014 WL 2212235, at *3 (N.D. Cal. May 28, 2014) (granting motion to 23 dismiss failure to warn claim because the only failure to report was the plaintiff’s 24 injuries which would not have caused her injury). 25 Therefore, Plaintiffs have failed to allege failure to warn causes of action that 26 27 28 - 15 - [16cv257-GPC(BGS)] 1 are parallel to federal regulations and cannot avoid preemption.5 The Court GRANTS 2 Defendant’s motion to dismiss the failure to warn causes of action as preempted. 3 iii. 4 The TAC also alleges loss of consortium as to Plaintiff James Weaver, (Dkt. No. Loss of Consortium and Punitive Damages 5 45, TAC ¶ 13), and seeks punitive damages, (id. at p. 23). Defendant argues that 6 because Plaintiffs’ substantive claims are without merit, the loss of consortium and 7 punitive damages claim, which are derivative in nature, also fail. Plaintiffs do not 8 address this argument as they assert they have stated claims under state law. 9 A loss of consortium claim is derivative of and dependent on the spouse’s 10 negligence action. Calatayud v. State of California, 18 Cal. 4th 1057, 1060 n. 4 (1998). 11 In medical device cases, courts have held that loss of consortium is derivative of other 12 causes of action. See Riegel, 552 U.S. at 321 (since the loss of consortium is derivative 13 of the other causes of action, the Court dismissed it as preempted); Anderson, 2015 WL 14 2115342 at *9 (dismissing loss of consortium as it derivative of the other causes of 15 action); Simmons, 2013 WL 1207421, at *6 (granting motion to dismiss as claim for 16 loss of consortium is derivative of the other claims). In addition, punitive damages are 17 also derivative of the substantive claims. See Knoppel v. St. Jude Medical Inc., No. 18 SACV 13-383 JVS(ANx), 2013 WL 3803612, at *3 (C.D. Cal. May 7, 2013) (“because 19 Plaintiffs’ claims for punitive damages and loss of consortium are derivative of the 20 preempted claims, those claims must be dismissed as well.”). Here, since the Court 21 dismisses all causes of action, the loss of consortium claim and punitive damages based 22 on these claims also fail. 23 5 The TAC also alleges a failure to warn physicians and the general public. (Dkt. 24 No. 45, TAC ¶¶ 51, 56.) In the prior order on Defendant’s motion to dismiss, the Court concluded that failure to warn physicians and the general public based on state law are 25 expressly preempted. (Dkt. No. 44 at 13.) The Court similarly concludes the same. See Stengel, 704 F.3d at 1234 (Watford, J., concurring) (“[A]ny attempt to predicate 26 the [plaintiffs’] claim on an alleged state law duty to warn doctors directly would have been expressly preempted under 21 U.S.C. § 360k, which forbids state-imposed 27 requirements that are ‘different from, or in addition to’ the requirements imposed by federal law.”); Anderson, 2015 WL 2115342 at *6 (failure to warn doctors and general 28 public preempted); Funke, 147 F. Supp. 3d at 1024 (claim of failing to warn plaintiff and his medical provided were expressly preempted). - 16 - [16cv257-GPC(BGS)] 1 2 Conclusion Based on the above, the Court GRANTS Defendant’s motion to dismiss the third 3 amended complaint with prejudice. The hearing set for February 24, 2017 shall be 4 vacated. 5 IT IS SO ORDERED. 6 7 DATED: February 21, 2017 8 9 HON. GONZALO P. CURIEL United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 - [16cv257-GPC(BGS)]

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